Mr Ken Foxe of Right to Know CLG and Department of Public Expenditure and Reform

Mr Ken Foxe of Right to Know CLG and Department of Public Expenditure and Reform

Case number: OIC-53318-Z7T4L9

Whether the Department was justified in refusing access to records relating to a specified meeting between the Minister for Public Expenditure and Reform (the Minister) and various Ministers of State under section 15(1)(a) of the FOI Act on the grounds that records sought do not exist or cannot be found

26 February 2020

Background

On 19 December 2018, the applicant submitted a request to the Department for copies of any records held by the Department for the period 1 July 2018 to the date of the request relating to the request by Ministers of State for increased subsistence/allowances because of the cost of securing accommodation in Dublin. He suggested that searches of any relevant private email addresses and/or messaging services should be considered when processing the request.

On 31 January 2019, in the absence of a response from the Department, the applicant sought an internal review of the deemed refusal of his request. On 18 February 2019, the Department issued a decision in which it refused the request under section 15(1)(a) of the FOI Act on the ground that records concerned do not exist or cannot be found after all reasonable steps to ascertain their whereabouts have been taken. On 26 February 2019, it issued its internal review decision in which it affirmed its original decision. It provided brief details of the searches undertaken. On 28 February 2019, the applicant sought a review by this Office of the Department's decision.

I have now completed my review of the Department’s decision. In conducting this review I have had regard to the correspondence between the applicant and the Department as set out above and to the communications between this Office and both the Department and the applicant on the matter.

Scope of the Review

This review is concerned solely with whether the Department was justified in refusing access, under section 15(1)(a), to records relating to a request by Ministers of State for increased subsistence/allowances because of the cost of securing accommodation in Dublin on the ground that the records sought do not exist or cannot be found after all reasonable steps to ascertain their whereabouts have been taken.

Analysis and Findings

Section 15(1)(a) of the FOI Act provides that access to records may be refused if the records concerned do not exist or cannot be found after all reasonable steps to ascertain their whereabouts have been taken. The role of the Commissioner in a case involving section 15(1)(a) is to decide whether the decision maker has had regard to all of the relevant evidence and, if so, whether the decision maker was justified in coming to the decision that the records do not exist or cannot be found after all reasonable steps to ascertain their whereabouts have been taken. The evidence in such cases includes the steps actually taken to search for records. It also comprises miscellaneous other evidence about the record management practices of the FOI body, on the basis of which the decision maker concluded that the steps taken to search for records were reasonable.

In his application for review to this Office, the applicant argued that the suggestion that no relevant records exist is not credible. He referenced a newspaper report concerning a meeting that took place between the Minister for Public Expenditure and Reform (the Minister) and eight junior Minsters relating to the matter in December 2019. He argued that it is impossible to believe that a Minister could meet eight of his ministerial colleagues and that not a single record would exist. He stated that the Department did not appear to have acted upon his suggestion that it should look at whether relevant records were held on private emails or private messaging services.

In its submissions to this Office, the Department provided details of the searches it undertook in an effort to determine if any relevant records existed. It said it searched its Lotus Notes system, the Departmental eCorrespondence repository, the Ministerial email inbox, a relevant alternative Ministerial inbox, and the Minister’s Outlook Calendar. It said it circulated the request to the Minister’s Private Secretary, the Minister’s Private Office Managers, the Minister of State’s Private Secretary, and the Public Service Pay and Pensions Division. It said in each case, no relevant records were located.

On the matter of the absence of records relating to the meeting identified by the applicant, the Department said it understands that an informal meeting took place between the Minister and a number of his party colleagues on the margins of another meeting in Leinster House and as a result, there are no records of the meeting held by the Department.

On the matter of the applicant’s suggestion that private email addresses and/or messaging services should be searched, the Department noted that the Minister has previously stated that he does not use private email accounts for official business. It provided details of the Minister’s response to a PQ wherein he confirmed that position.

The Department argued that searches of private accounts cannot be required under the Act simply because or a theoretical possibility that records may exist. It argued that such an approach would, in practice, mean that such searches would be required in the course of many if not the vast majority of FOI processes. It argued that an administrative step that is reasonable will be necessary, proportionate, and will encroach on relevant privacy rights to the minimum extent possible in order to achieve its objective. It argued that in applying a proportionality test, the decision maker must have regard to the circumstances in the round, including any basis for believing that records may be held in private accounts. It said this may include an assessment of the nature of the request, any additional information proffered by the requester, the contents of any records held on official systems that have been identified as relevant to the matters at issue in the request, or the reasons identified for the absence and/or non-existence of records, whether in official or non-official systems.

The Department argued that there was no reasonable basis to suppose that relevant records exist in this case, either on official systems or in personal accounts. It argued that it was neither necessary nor proportionate in the circumstances for any further searches to be carried out.

During the course of the review, Ms Whelan of this Office provided the applicant with details of the Department’s submission. In response, the applicant stated that the Minister had not been asked if he held any relevant records relating to the request and that his phone had not been searched for relevant records held on various applications.

The question I must consider is whether the Department has taken all reasonable steps to ascertain the whereabouts of relevant records. Having regard to the Department’s description of the meeting in question, to the Minister’s stated position on his use of private email accounts, and to the details of the searches undertaken on foot of the request, I consider that it has.

In the particular circumstances of the case, I do not accept that the Department should reasonably have been expected to arrange for searches to be undertaken of non-official systems or external devices or, indeed, that it should reasonably have been expected to ask the Minister to confirm that he held no relevant records on such systems or external devices. It seems to me that the Department had no reasonable grounds for considering that relevant records may be held by the Minister on such systems and/or devices.

I note that in a previous review involving the applicant, this Office found that a government department had not taken all reasonable steps to ascertain the whereabouts of relevant records given that it had failed to ask a former Minister whether further records were held by her. In that case, however, there was evidence before the relevant department that the former Minister has used a private email account for official business. No such evidence is apparent in this case.

In the circumstances, I find that the Department was justified in refusing the request under section 15(1)(a) on the ground that the records sought do not exist or cannot be found after all reasonable steps to ascertain their whereabouts have been taken.

Decision

Having carried out a review under section 22(2) of the Freedom of Information Act 2014, I hereby affirm the decision of the Department to refuse, under section 15(1)(a) of the Act, the applicant’s request for copies of records held by it relating to the request by ministers of state for increased subsistence/allowances because of the cost of securing accommodation in Dublin.

Right of Appeal

Section 24 of the FOI Act sets out detailed provisions for an appeal to the High Court by a party to a review, or any other person affected by the decision. In summary, such an appeal, normally on a point of law, must be initiated not later than four weeks after notice of the decision was given to the person bringing the appeal.